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Local authority’s special guardianship allowance policy ruled illegal

Carer under special guardianship order must be paid at foster carer’s rate

A "grandparent kinship" carer's High Court challenge to the London Borough of Merton's policy for financial support of kinship carers has been successful. In R (TT) v London Borough of Merton [2012] EWHC 2055 (Admin) Mr Justice Edwards-Stuart has ruled that Merton's special guardianship allowance policy is illegal.

The carer known as TT has won the right to be paid at the same rate as a foster carer for the child she is looking after under a special guardianship order.  The decision to adopt a level of allowance for special guardians of two thirds was unlawful and must be quashed. This decision may have a direct impact on current and future carers with special guardianship orders, not just in London but more widely because it is understood that other authorities pay guardians below  the level of foster carers.

TT had been requested by social services to care for her son's ex-girlfriend's child from a different father.  After C was born both parents received long prison sentences and were unable to care for C.  C went into foster care whilst the London Borough of Merton Council attempted to find a more permanent placement for the child.  C's family were not willing to put themselves forward as carers so the council decided to approach TT.  TT was caring for her granddaughter, who was also C's mother's daughter, at this point and the council wanted C to grow up with some family contact and therefore asked TT to care, even though she was not a blood relation.

At the end of care proceedings TT was awarded with a special guardianship order.  As part of the support package with the order she was granted a financial allowance.

Commenting, Rebecca Chapman of Huddersfield law firm Ridley & Hall, who represented TT, said:

"The Allowance was so low it caused concern to the person representing C in the care proceedings.   The issue was raised with the local authority who informed TT that 'if she did not like the amount of the allowance she could challenge it through the High Court'.  She was left with no choice."

The allowance was based on two thirds of the fostering allowance and then there were further deductions made.

Once solicitors became involved the council quickly acknowledged that the further deductions made to the allowance were not right. They backdated a payment to TT for the additional deductions.  However, they said it was legal to pay the special guardianship allowance based on two thirds of the fostering allowance. 

Ms Chapman went on: 

"Before C was put into the care of TT he witnessed a violent relationship between his parents.  Since his father has been sentenced he has been diagnosed with serious mental health problems.

"As C had a difficult start to life and because he was mixed race, TT thought it was unlikely that he would be successfully adopted and she was keen to ensure that he was brought up in a loving environment so decided to take on his care.  When TT decided to care for her granddaughter she had to give up her job and then when C was placed with her she was unable to go back to work due to the caring commitment.  As C has grown older he has shown more challenging behaviour and she has been unable to go back to work due to the level of care that C requires."

Rebecca Chapman concluded:

"When my client started this case she was paid £27.88 per week. Merton thought again and paid her £84 per week. Now their starting point will add another £100 per week.

"My client stepped in so that the children could be protected. It is widely acknowledged that in these circumstances, children do better when cared for within the extended family or with friends.

It is a shame that we had to proceed to a final hearing in this case, especially given the fact that my colleague Nigel Priestley has already won a case against another local authority on the same point [Barrett v Kirklees Metropolitan Borough Council [2010] EWHC 476 (Admin)].  However, I am delighted that TT is now going to receive an allowance which should ensure that C's future is secure with her".